The Parallels Between South African and U.S. Law On Universal Jurisdiction

­The Parallels Between South African and U.S. Law On Universal Jurisdiction

In an earlier post, we noted that the South African universal jurisdiction (UJ) statute is not particularly exceptional as compared with other national statutes penalizing atrocity crimes.  Nor is it that different from U.S. law as discussed below.  This fact should temper any criticism that might be leveled against other states that have empowered their own systems to extend an extraterritorial reach over atrocity crimes.

U.S. Universal Jurisdiction Law

The United States penal code is a bit of a checkerboard when it comes to the codification of international crimes.  We can prosecute a number of what have been helpfully described as “atrocity crimes” domestically; the only exception is crimes against humanity for which we have no domestic statute.  The majority of these statutes incorporate a modified version of UJ in the form of “present in” jurisdiction—i.e., they allow for the exercise of jurisdiction over a perpetrator “present in” the United States absent any other link between the crime and the forum.  Present in jurisdiction under U.S. law thus exists over the crimes of genocide, the recruitment and use of child soldiers, torture, most terrorism crimes, various forms of trafficking, piracy, and the slavery-related crimes.

In enacting these statutes, Congress at times went beyond what is required by the underlying treaty.  The Child Soldiers Optional Protocol, for example, does not require the exercise of UJ over the recruitment or use of child soldiers, although this conduct is a war crime according to the Rome Statute when committed in either an international (Article 8(2)(b)(xxvi)) or a non-international armed conflict (Article 8(e)(2)(e)(vii)).  Likewise, the Genocide Convention at Article VI only obligates states parties to exercise territorial jurisdiction over the crime (i.e., over acts of genocide committed on the prosecuting state’s territory).  In addition to these atrocity crimes, almost all of the terrorism crimes contained within the federal penal code are also subject to “present in” jurisdiction.  (For a list of relevant statutes, see the chart below).

The U.S. law penalizing torture is thus typical; it allows for U.S. courts to exercise jurisdiction where:

1. the alleged offender is a national of the United States (a.k.a. active personality jurisdiction); or
2. the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender (“present in” jurisdiction).

U.S. Caselaw

Given the state of U.S. penal law, if one of the potential Zimbabwean defendants in the South African case were to be found in the United States, our Department of Justice would be empowered to bring similar claims for torture in U.S. courts.  Furthermore, if such a visit were anticipated, it would be appropriate for the Department to begin its investigation in advance so as to be able to move quickly once the individual entered our territory (assuming extradition is not an option).  So far, however, the U.S. atrocity crimes legislation has rarely been invoked.  The most important case is perhaps that brought against Chuckie Taylor, the son of Liberian strongman Charles Taylor who was found in the U.S.  (Because Taylor was born in the United States, the jurisdictional basis for the Taylor case implicates both nationality and universal jurisdiction).

Besides the Taylor case, the UJ criminal cases in U.S. courts primarily involve terrorism charges.  Notable are the cases involving Al-Shabaab defendants, which have no direct U.S. nexus except insofar as the group has made statements threatening to harm U.S. interests.  For example, Al Shabaab Operative, Eritrean citizen, and Swedish resident Mohamed Ibrahim Ahmed pled guilty and was sentenced in March 2013 to 111 months in prison for conspiring to provide material support to a terrorists (under 18 U.S.C. §2339A) and for receiving military training from Al Shabaab in violation of 18 U.S.C. §2339D.  (The original indictment is here).  Ahmed was arrested in Nigeria and transported to the United States for prosecution.  The latter statute provides at § 2339D(b)(3) that jurisdiction exists if:

After the conduct required for the offense occurs an offender is brought into or found in the United States, even if the conduct required for the offense occurs outside the United States…

Under prevailing law—as established following Operation Goldenrod, which led to the capture of wanted terrorist Fawaz Younis—a UJ prosecution requiring that the defendant be “present” or “found” in the U.S. can go forward even when the defendant is brought into the United States by law enforcement personnel or otherwise.  (Younis was lured into international waters and captured in a sting operation involving FBI agents).

War Crimes: The Exception

As mentioned in our prior post, it is notable (and regrettable) that our war crimes statute allows only for the exercise of nationality jurisdiction: the victim or perpetrators must be a U.S. national or member of the U.S. armed forces.  On the positive side, the perpetrator need not be “present in” the United States for charges to be brought.

When Congress was considering enacting the War Crimes Act in the mid-1990s, both the Department of Defense (see the letter from General Counsel Judith Miller and testimony of John H. McNeill, Senior Deputy General Counsel) and the Department of State (see the testimony of Michael J. Matheson, Principal Deputy Legal Adviser, and letter by Barbara Larkin, Acting Assistant Secretary, Legislative Affairs) argued to Congress that the U.S. should adopt present-in jurisdiction in order to be in compliance with the Geneva Conventions; the Department of Justice resisted on the ground that extraterritorial cases are difficult.  Today’s Department of Justice now has a unit dedicated to tracking and bringing human rights cases, the Human Rights & Special Prosecutions Unit, which is headed by Teresa McHenry, a former Prosecutor from the International Criminal Tribunal for the Former Yugoslavia (ICTY). Both the FBI and the Department of Homeland Security also haved dedicated human rights/war crimes units. So, domestic capacity is no longer an issue.

Whither Crimes Against Humanity?

The absence of a statute penalizing crimes against humanity statute is also a shame.  Most importantly, it means that we cannot prosecute the mass abuse of civilians (such as a peacetime massacre of civilians) when it does not rise to the level of genocide, constitute torture stricto sensu, or occur during an armed conflict and involve a U.S. person, thus implicating our war crimes statute.  The lack of a crimes against humanity statute is no doubt due in part to the fact that there is no treaty dedicated to the penalization of the crime other than the Rome Statute.  In 2009, Senator Durbin (D-IL)—building upon his success in getting the 2007 Genocide Accountability Act, the 2008 Child Soldiers Accountability Act, and the 2008 Trafficking in Persons Accountability Act passed by Congress and signed by President George W. Bush—introduced a statute criminalizing crimes against humanity.  The bill (S.1346) did not progress.  At the multilateral level, Professor Leila Sadat, of Washington University School of Law, has led an effort to draft a crimes against humanity treaty.   The International Law Commission (ILC) recently decided to place the consideration of a crimes against humanity treaty on its Long-Term Work Program (see paras. 169-170 and Annex B), based on the proposal of Professor Sean Murphy, the U.S. member of the ILC.  It remains to be seen whether Durbin will revive his effort now that the budget issue is behind us…

For reference, the prevalence of UJ/present in jurisdiction under U.S. law (with respect to atrocity crimes and terrorism crimes) is displayed graphically below with reference to the operative provision of Title 18, the federal penal code, as well as any treaty requiring the exercise of extraterritorial jurisdiction. Some of these statutes expressly apply extraterritorially; others do not.  In some circumstances, Congress has passed an omnibus statute providing for extraterritorial jurisdiction when the defendant is “present in” the United States (see, e.g., 18 U.S.C. § 1596 applying to the trafficking statutes). Likewise, Congress in some cases allows for the exercise of passive personality jurisdiction (when the victim is a U.S. national) only if the defendant is also present in the U.S. as indicated below (e.g., genocide). For other crimes, charges involving harm to U.S. citizens can be brought without the defendant being present (e.g., war crimes).